Exhibit 10.15
TRANSITION SERVICES AGREEMENT
by and between
HOECHEST AG
(hereinafter referred to as "Hoechst")
and
The Companies listed in Annex A)
(hereinafter referred to as the "Service Entities")
- - on the one side -
and
DIAGNOSTICS HOLDING, INC.
(hereafter referred to as "Dade")
and
The Companies listed in Annex B)
(hereinafter referred to as the "Acquired Entities")
- - on the other side)
dated as of September 30, 1997
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CONTENTS
Directory of Annexes 2
Preamble 3
Article 1 - Service Provided 3
Article 2 - Remuneration for Services 3
Article 3 - Invoicing and Payment 9
Article 4 - Liability 10
Article 5 - Excusable Delay 12
Article 6 - Term and Termination 13
Article 7 - Confidentiality 15
Article 8 - Arbitration 16
Article 9 - Miscellaneous 18
DIRECTORY OF ANNEXES
Annex 1.1 - Services
Annex 1 4 - Service Coordinators
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Preamble
A. Hoechst and Dade have entered into an Agreement and Plan of Combination
dated as of June 24, 1997 (the "Combination Agreement"). Under the
Combination Agreement Hoechst and Dade have agreed to combine all of Dade's
business and Hoechst's human in vitro diagnostic business (the "Business").
(Capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Combination Agreement); and
B. As set forth in Section 2.1(g) of the Combination Agreement, Hoechst and
Dade agreed that Dade and the Acquired Entities shall enter into one or
more transition services agreements relating to certain transitional
administrative and support services for the Business for a certain period
after the completion of the transactions contemplated by the Combination
Agreement in accordance with the terms of this Agreement;
NOW, THEREFORE, subject to the terms, conditions, covenants and provisions of
this Agreement, Hoechst and Dade mutually covenant and agree as follows:
Article 1
Services Provided
1.1 Upon the terms and subject to the conditions set forth in this Agreement,
Hoechst and the Service Entities will provide to the Acquired Entities for
the Business each of those administrative and support services listed
individually or included within a category of service listed in Annex 1.1,
which is attached to and made part of this Agreement, in the countries set
forth in that Annex (hereinafter referred to individually as a
"Transitional Service", and collectively as the "Transitional Services"),
during the period until December 31, 1999 unless terminated prior thereto
(hereinafter referred to as the "Time Periods" for all of the Transitional
Services, and the "Time Period" for each Transitional Service). The
Acquired Entities shall purchase and off-take the Transitional Services
during the term of each of such service in amounts of not less than fifty
(50%) of the quantities as of the date hereof, provided that the Acquired
Entities shall continue to lease all space leased as of the date hereof.
1.2 The parties have attempted to list on Annex 1.1 (i) each service rendered
by Hoechst or a Hoechst Entity in 1996 and 1997 to the Business (except for
services to be provided by InfraServ GmbH & Co. Marburg KG and HiServ GmbH)
and (ii) which Hoechst and the Service Entities should provide for an
interim period in order to enable the Acquired Entities to operate
consistent with past practice on a stand-alone basis (collectively the
"Required Services") but acknowledge that Annex 1.1 may be incomplete.
Thus, if a service desired by Dade or an Acquired Entity is not listed in
Annex 1.1 but is a Required Service, such Required Service
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shall be added to Annex 1.1, upon the terms and conditions of this
Agreement. Such Required Service shall be deemed to be a Transitional
Service for the purpose of this Agreement.
1.3 ln providing the Transitional Services, Hoechst and the Service Entities
may employ the services of third parties (the "Outside Service Providers")
to the extent such Outside Service Providers are either routinely utilized
to provide similar services to Hoechst enterprises or are reasonably
necessary for the efficient performance of any Transitional Service or such
Outside Service Provider is, in Hoechst's reasonable determination,
otherwise qualified to render such Transitional Service at quality
standards not lower than in 1996; provided that Hoechst and the Service
Entities shall not employ for the purpose of this Article 1.3 any Outside
Service Provider which is a competitor of Dade or any of the Acquired
Entities. Whether or not an Outside Service Provider is employed, Hoechst
and the Service Entities shall be responsible for the delivery of the
Transitional Services in compliance with the terms of this Agreement.
1.4 Hoechst and Dade shall each nominate a representative to act as the primary
contact person for the supervision of the implementation of this Agreement
(collectively, the "Primary Coordinators") The initial Primary
Coordinators shall be John Doherty for Dade and Derek Gribbin for Hoechst.
The initial coordinators for specific Transitional Services in each country
shall be the individuals named in the description of such Transitional
Service in Annex 1.4 (the "Service Coordinators") with the name, address
and phone number of each such Service Coordinator set forth on Annex 1.4.
Hoechst and Dade shall advise each other in writing of any change in the
Primary Coordinators and any Service Coordinator. Hoechst and Dade agree
that a copy of all communications relating to the provision of the
Transitional Services shall be directed to the Primary Coordinators.
1.5 Hoechst and each of the Service Entities represent and warrant to Dade that
they have, and covenant with Dade that they shall maintain or have
available through Outside Service Providers all necessary assets and
personnel in order to fulfill their obligations hereunder.
1.6 To the extent reasonably required for the personnel to perform the
Transitional Services, each of the parties shall provide personnel
designated by the other with access to its equipment, office space, plants,
telecommunications and computer equipment and systems, and any other areas
and equipment, provided that such access does not include the use thereof
in the provision of any Transitional Service and does not unreasonably
interfere with such other party's conduct of its business. Any confidential
information received by either party due to such access shall be subject to
the provisions of Article 8 below.
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1.7 Hoechst hereby represents and warrants to Dade that the amount of
consideration paid or to be paid by the Acquired Entities for each
Transitional Service is not greater than the actual average purchase price
per unit paid for such Transitional Service by the Business during the 1996
calendar year, subject to an increase of Service Costs as agreed in Article
2.2 below (the "1996 Historical Prices").
1.8 Hoechst shall ensure that the Acquired Entities shall be neither assessed
nor liable to pay any (i) termination or similar fee, expense or other
liability of any kind whatsoever relating to, arising from or in connection
with any reduction in the level of use, or deletion, of any Transitional
Service by an Acquired Entity, or (ii) fee, expense or other liability of
any kind whatsoever relating to, arising from or in connection with any
remnant, residual or other similar costs relating to any Transitional
Service. Nothing in this Article 1.8 shall give Dade or the Acquired
Entities the right to assert that the 1996 Historical Prices should be
lower because they include a component which could be regarded as a fee
described above.
1.9 Hoechst promptly shall pay and shall indemnify and hold harmless the
Acquired Entities from any damage (except loss of profit) from or in
connection with any breach by Hoechst of any of the covenants,
representations or warranties in Sections 1.5, 1.7 and 1.8 of this
Agreement. All payments by Hoechst hereunder due to the Acquired Entity
concerned shall be made in the relevant local currency.
1.10 In the event of any of Dade and the Acquired Entities makes a good faith
argument that Hoechst is in breach of the representations and warranties
set forth in Articles 1.7 and 1.8 above, and Hoechst disagrees, Hoechst and
Dade shall make every reasonable effort to amicably resolve such difference
(which reasonable effort shall include a reasonable disclosure of documents
by Hoechst to Dade to permit verification of the actual 1996 prices). In
the event Hoechst and Dade cannot resolve any difference connected
therewith, Hoechst shall cause a qualified independent auditor subject to
Dade's approval, which will not be unreasonably withheld, promptly to
certify that no breach of Articles 1.7 and 1.8 has occurred. Such auditor's
certification shall set forth in reasonable detail the rationale for the
auditor's opinion. The costs for such audit shall be borne by the parties
in accordance with Section 91 et seq. Civil Procedure Act (ZPO).
1.11 The Acquired Entity shall have no obligation to continue to use any of the
Transitional Services and may delete any Transitional Service that Hoechst
is providing to the Acquired Entities by giving Hoechst written notice of
its desire to delete any or all Transitional Services. For this purpose a
written termination notice having effect three (3) months to the end of a
month must be provided by Dade for the deletion of a Transitional Service,
provided that each Acquired Entity shall in good faith attempt to give an
earlier notice to the Service Entity so that as much notice is given as
possible.
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1.12 Hoechst shall use best efforts (utilizing all commercially feasible means
including after consultation with Dade at Hoechst's free discretion the use
of Outside Service Providers) to provide at the Acquired Entities' cost
(unless such service was provided historically in which case Article 2
shall apply), on or prior to December 31, 1997, as part of the service set
forth in Annex 1.1 as "Accounting-Finance," each and every financial
reporting service set forth in Annex 1.1, (a) (the "Financial Reporting
Services"). In addition, as part of the foregoing and also at the Acquired
Entities' cost, Hoechst shall employ its best efforts to implement the
steps as set forth in Annex 1.12(b). The costs to be borne by the Acquired
Entities hereunder shall be based upon the incremental cost of providing
the Financial Reporting Services above and beyond those provided on a
historical basis. Prior to incurring such incremental cost in connection
with providing such Financial Reporting Services Hoechst shall consult with
Dade. For the avoidance of doubt: Article 1.7 does not apply to the
Financial Reporting Services other than those services provided
historically.
Article 2
Remuneration for Services
2.1 The remuneration for the services delivered hereunder shall be as set forth
in Annex 1.1 (the "Base Price"). V.A.T. or similar taxes are to be paid
separately by the Acquired Entities.
2.2 Upon written request of either (i) Hoechst or the Service Entity concerned
or (ii) Dade or the Acquired Entity concerned, as the case may be, the Base
Price shall be adjusted for any change of Service Costs, as defined
hereinafter. For purposes of this Agreement, "Service Costs" shall mean all
(i) out-of-pocket expenses (including reasonable fees of Outside Service
Providers and fifty percent (50%) of insurance fees to protect Hoechst and
the Service Entities against liability hereunder (cf. Article 4), provided,
that in no event shall Dade and the Acquired Entities be liable for any
insurance fees hereunder in excess of DM 50,000 in the aggregate) paid to
third parties by Hoechst or the relevant Service Entity in order to provide
the Transitional Services, including actual expenses paid by Hoechst or the
relevant Service Entity in order to comply with legal regulations
applicable to the provision of Transitional Services which become effective
after 1996, and (ii), costs relating to higher depreciation as a result of
investments made by Hoechst or the relevant Service Entity in order to
comply with legal regulations applicable to the provision of Transitional
Services which became effective after 1996.
2.3 A change in the Base Price of a service which results from a Price
Adjustment Event shall become effective for such service immediately
following the occurrence of a Price Adjustment Event, provided that any
change shall be deemed effective only if not disputed by any party
concerned following the receipt of a written notice from the party
requesting a price adjustment, which notice shall contain a reasonable
explanation for the change of the Base Price in
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accordance with Article 2.2 above. A decrease in the Base Price resulting
from a Price Adjustment Event, however, shall have retroactive effect to
such date on which Hoechst or the Hoechst Entity concerned knows or should
have known of such change. On an annual basis, a responsible financial
officer of the relevant Service Entity in their capacity as such without
personal liability and, if requested by Dade, an independent auditing firm
reasonably acceptable to Dade, shall certify that any changes in the Base
Price in the preceding year were correct and in accordance with the terms
of this Agreement. Unless the changes of the Base Price were incorrect, all
costs connected with the employment of the independent auditors shall be
borne by Dade.
2.4 In the event any party disputes the delivered evidence of any changes in
Service Costs, information about such costs shall be disclosed to all
parties concerned and Hoechst and Dade shall make on behalf of all parties
concerned every reasonable effort to amicably determine the substantiated
cost changes. If Hoechst and Dade cannot agree on an adjustment of the Base
Price, then any adjustment of the Base Price shall be determined by an
internationally recognized firm of auditors to be appointed by mutual
agreement of Hoechst and Dade or, failing such agreement, upon request of
either party by Deloitte & Touche after hearing both parties. Confidential
information received by such firm of auditors shall, upon request of
Hoechst or the Service Entity concerned, not be disclosed to Dade or the
Acquired Entity concerned. Any changes agreed to or determined by the
auditors shall be given retroactive effect.
The firm of auditors shall act as appraiser (known as Schiedsgutachter) in
the meaning of Sections 315 et seq. Civil Code (BGB) and not as arbitrator
(known as Schiedsrichter), and its determination shall be final and binding
on the parties.
The costs of the appraisal proceeding, including the cost of the respective
attorneys, witnesses and experts in connection with such arbitration shall
be borne by the parties in accordance with Sections 91 et seq. German Civil
Procedure Act (ZPO) as directed in the auditor's appraisal.
Article 3
Invoicing and Payment
3.l Transitional Services shall be invoiced to the Acquired Entities by Hoechst
or the relevant Service Entities in the month following the month in which
the Transitional Services were rendered. Payment of invoices shall be made
in the currency of the jurisdiction in which the Transitional Service which
is the subject of the Invoice is received. Each invoice shall include a
summary list of the previously agreed upon Transitional Services for which
there are fixed fees, together with documentation supporting each of the
invoiced amounts that are not covered by the fixed fee agreements. The
total of this list and supporting detail
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will equal the invoice total, and will be provided under separate cover
apart from the Invoice.
3.2 Provided that the invoice is received at least ten (10) days prior to the
due date, Invoices become due for payment on the 25th day after the end of
the invoiced period. Payments by the Acquired Entities shall be effected
free of charge to a bank account designated by Hoechst or the Service
Entities. Delayed payments shall bear interest at 10 percentage points p.a.
Article 4
Liability
4.l Hoechst and the Service Entities shall perform the Transitional Services
hereunder exercising the greater of (i) the same degree of care they
usually apply in their own matters, (ii) the same degree of care applied by
a prudent business person or (iii) the same degree of care they exercised
historically in performing the same or similar services for the Business
during the 1996 calendar year, provided, however, that Hoechst and the
Service Entities, as the case may be, may be held contractually or legally
liable only for claims with regard to the fulfillment of this Agreement
(a) if the relevant management (Vorstand; Geschaftsfuhrung) has
negligently or willfully violated the obligation of due care as stated
above, or
(b) if a person, including employees of Hoechst or a Service Entity
performing contractual tasks hereunder (Erfullungsgehilfe) other than
the management of such company, has grossly negligently or willfully
caused a damage to an Acquired Entity.
Notwithstanding anything to the contrary contained herein, in the event
Hoechst or a Service Entity commits an error with respect to, or
incorrectly performs or fails to perform, any service, Hoechst or the
Service Entity, at the Acquired Entity's request, shall use reasonable best
efforts to promptly correct such error, or to reperform or perform such
service.
4.2 To the extent that Hoechst or a Service Entity, as the case may be, is
responsible for damages as set forth in Article 4.1 lit. (a) and lit. (b)
above, Hoechst or the responsible Service Entity shall fully indemnify and
hold harmless the Acquired Entity concerned against any damages (excluding
damages for loss of profit). Unless such damages were caused by willful
misconduct of Hoechst or the Service Entities, Hoechst's or the Service
Entities', as the case may be, indemnification obligation hereunder shall
only apply to the extent that in each incident (or series of related
incidents) such damages exceed DM 25,000 (in words: Deutsche Mark twenty
five thousand).
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The liability limitations referred to in this Article 4.2 shall not apply
in cases of willful misconduct.
4.3 To the extent that the parties submit to each other information or give
advice without remuneration outside of their duties under this Agreement,
neither party shall assume any liability for the correctness of such
information or advice.
4.4 Subject to the terms and conditions stated hereinafter Hoechst guarantees
that each of the Service Entities will
(a) always have sufficient capital to make the expenditures necessary to
maintain the quantity and the quality of the Transitional Services
which the Service Entities are obligated to provide under this
Agreement; and
(b) make all payments due to the Acquired Entities under this Agreement,
including payments due to breach of contract
(hereinafter the "Performance Guarantee").
Any Service Entity can call Hoechst liable under the Performance Guarantee,
if (i) the relevant Service Entity has been liquidated and the delivery of
the services under this Agreement will not be continued by a successor, or
(ii) if the relevant Service Entity's assets become subject of a bankruptcy
procedure and the trustee in bankruptcy or an successor is not prepared to
fully continue to provide the services under the terms of this Agreement,
or (iii) the enforcement of a final arbitration award against the relevant
Service Entity in favor of the Acquired Entity on the basis of this
Agreement is fruitless. Hoechst hereby agrees to join and be bound by any
arbitration proceeding brought by the Acquired Entity against any Service
Entity relating to this Agreement and to resolve, to the extent possible,
any dispute with respect to Hoechst's liability under the Performance
Guarantee in such proceeding.
Upon request by any Acquired Entity and with a view to prevent or limit any
material non-performance or mal-performance of any Service Entity under
this Agreement, Hoechst shall cause (if legally possible, otherwise Hoechst
shall use its best efforts to cause) the Service Entity concerned to fully
comply with the terms of this Agreement (unless the Service Entity
concerned is excused from so complying under the terms of this Agreement).
Such request of any Acquired Entity shall be set forth in a written notice
stating in reasonable detail why and that the Service Entity concerned does
not comply or may be reasonably expected not to comply in a material way
with the terms of this Agreement.
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Article 5
Excusable Delay
5.1 Except as otherwise expressly provided in this Agreement, neither party
hereto shall be liable for a failure to perform hereunder for reasons of
force majeure, including acts of God, acts of a public enemy, acts of the
governments of any state or political subdivision or any department or
regulatory agency thereof or entity created thereby, quotas, embargoes,
acts of any person engaged in subversive activity or sabotage, fires,
floods, explosions, or other catastrophes, epidemics, or quarantine
restrictions, strikes or other labor stoppages, slowdowns or disputes, or
any other cause beyond the control of the parties ("Reasons of Force
Majoure"). Each party shall use its best efforts to cure any such cause
preventing its performance and to resume performance.
5.2 In the event Hoechst or a Hoechst Entity reasonably believes that delivery
of Transitional Services may be delayed, impaired or prevented by Reasons
of Force Majeure, it shall (a) immediately notify the Acquired Entity
concerned of the possibility of such cause, (b) immediately notify the
Acquired Entity of such actual cause, and (c) use its best efforts to keep
this Agreement operative.
5.3 In the event an Acquired Entity reasonably believes that receiving of
Transitional Services may be delayed due to a Reason of Force Majeure, such
Acquired Entity shall (a) immediately notify the Hoechst Entity concerned
of the possibility of such cause, (b) immediately notify the Hoechst Entity
of such actual cause, and (c) use its best efforts to keep this Agreement
operative.
5.4 If and to the extent any Acquired Entity shall be unable to off-take a
Transitional Service as a result of a Reason of Force Majoure, such
Acquired Entity shall pay any actual damage incurred by Hoechst or the
Service Entity thereof, provided that Hoechst or the Service Entity
concerned shall use its best efforts to mitigate any such damage.
Article 6
Term and Termination
6.1 This Agreement shall become effective on the Closing Date and shall remain
in force until the expiration of the longest Time Period unless all of the
Transitional Services are deleted by the parties in accordance with Article
6.2 below. This Agreement shall in any event terminate on December 31,
1999.
6.2 If either party (hereafter called the "Defaulting Party") shall fail to
perform or default in the performance of any of its obligations under this
Agreement, the other party receiving or rendering Transitional Services
hereunder (hereinafter called the "Non-Defaulting Party") may give written
notice to the Defaulting Party specifying the nature of such failure or
default and stating that the Non-
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Defaulting Party intends to terminate this Agreement if such failure or
default is not cured within fifteen (15) days of such written notice. If
any failure or default so specified is not cured within such fifteen (15)
day period, the Non-Defaulting Party may elect to immediately terminate
this Agreement; provided, however, that if the failure or default relates
to a dispute made in good faith by the Defaulting Party, the Non-Defaulting
Party may not terminate this Agreement pending the resolution of such
dispute. Such termination shall be effective upon giving a written notice
of termination from the Non-Defaulting Party to the Defaulting Party and
shall be without prejudice to any other remedy which may be available to
the Non-Defaulting Party against the Defaulting Party. Furthermore, the
Non-Defaulting Party shall be entitled to immediately terminate either this
Agreement or any of the Transitional Services provided hereunder if the
Defaulting Party is not able to cure within thirty (30) days a Reason of
Force Majeure as set forth in Article 5 hereunder.
6.3 Dade specifically agrees and acknowledges that all obligations of Hoechst
and the Service Entities to provide each Transitional Service shall
immediately cease upon the expiration of the Time Period for such
Transitional Service, and Hoechst's obligations to provide all of the
Transitional Services shall immediately cease upon the termination of this
Agreement.
6.4 Without prejudice to the survival of the other agreements of the parties,
the following obligations shall survive the termillatioll of this
Agreement: (i) for the period set forth therein, the obligations of each
party under Articles 4 (Liability), 7 (Confidentiality) (ii) Hoechst's or
the Service Entities' right to receive the compensation for the
Transitional Services provided prior to the effective date of termination.
6.5 Within ten (10) days of the earlier of (i) notice by Dade to Hoechst of
termination of any of the Transitional Services set forth in Annex 1.1, or
(ii) Dade's earlier request at any time more than sixty (60) days after the
15 date of this Agreement, Hoechst and the Service Entities shall, at
Hoechst's sole expense transfer and deliver to Dade all master and
transaction files necessary and desirable, in Dade's sole discretion, for
Dade's conversion to new data processing systems. Such files shall be
delivered in the form they exist in Hoechst's or the Service Entities' data
processing systems.
Article 7
Confidentiality
7.1 Each party shall regard as confidential and proprietary all of the
information communicated to it by the other party from and after the date
hereof in connection with this Agreement (including but not limited to the
Specifications and any and all documents or other information relating
thereto, whether or not marked "confidential") (which information shall,
subject to the exception set forth in
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Article 8.4 hereof, at all times remain the property of the disclosing
party), referred to herein as "Confidential Information". Confidential
Information includes such information disclosed by a party orally or
visually, directly or indirectly. Confidential Information of a party is
also deemed to include identification of problems to be solved, areas for
process, product and equipment improvements, and Confidential Information
of third parties, which are observed, identified or disclosed under or as a
result of this Agreement.
7.2 During the term of this Agreement and for a period of ten (10) years
following termination, neither party shall, without the other's prior
written consent, at any time (a) use such Confidential Information for any
purpose other than in connection with the performance of its obligations
under this Agreement, or (b) disclose any portion of such Confidential
Information to third parties. Each party shall promptly at the termination
of this Agreement return to the disclosing party all such Confidential
Information which is in written or tangible form (including all copies,
summaries and notes of the contents thereof), but its counsel may retain a
single copy thereof for record purposes.
7.3 Each party shall disseminate Confidential Information of the other party to
its employees, agents and subcontractors only on a need-to-know" basis, and
shall use the same degree of care in protecting such Confidential
Information of the other party as it does for its own information of like
kind. Each party shall cause each of its employees, agents and
subcontractors who has access to such Confidential Information to comply
with the terms and provisions of this Article 7 in the same manner as it is
bound hereby, with it remaining responsible for the actions and disclosures
of any such employees, agents and subcontractors.
7.4 Notwithstanding the foregoing, a party's obligations pursuant to the above
paragraph shall not apply to (i) information that, at the time of
disclosure, is, or after disclosure becomes part of, the public domain
other than as a consequence of a breach of this Agreement, (ii) information
that was known or otherwise available to the receiving party prior to the
disclosure by the disclosing party, (iii) information disclosed by a third
party to the receiving party after the disclosure by the disclosing party,
if such third party's disclosure does not violate any obligation of the
third party to the disclosing party, (iv) information that is independently
developed by the receiving party, or (v) which is required to be disclosed
by law or governmental order.
7.5 With respect to any confidential information. each party agrees that upon
the discovery of any inadvertent disclosure or unauthorized use of said
information, or upon obtaining notice of such a disclosure or use from the
other party, it shall take all necessary actions to prevent any further
inadvertent disclosure or unauthorized use, and such other party shall be
entitled to pursue any other remedy which may be available to it.
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Article 8
Arbitration
8.1 In the event of any dispute or disagreement between the parties as to the
interpretation of any provision of this Agreement (or the performance of
any obligations hereunder), except pursuant to Article 2.4, the matter,
upon written request of either party, shall be referred to representatives
of the parties for decision, each party being represented by one senior
officer who has no direct operational responsibility for the matters
contemplated by this Agreement and who is authorized to settle the dispute
without further consultation with any other officer (the
"Representatives"). The Representatives shall promptly meet in a good faith
effort to resolve the dispute. If the Representatives do not agree upon a
decision within thirty (30) days after reference of the matter to them,
each of the parties shall be free to exercise the remedies available to it
under Article 8.2.
8.2 Except as provided in Article 2.4, any controversy, dispute or claim
arising out of or relating in any way to this Agreement or the other
agreements contemplated hereby that cannot be resolved by negotiation shall
be settled exclusively by arbitration in Frankfurt am Main, Germany. The
arbitration shall be conducted in the English language. Such arbitration
shall be administered by the German Institution for Arbitration (the
"Arbitral Body") in accordance with the then prevailing Arbitration Rules
of the German Institution for Arbitration e.V. (DIS) (except as otherwise
provided herein), by three independent and impartial arbitrators, one of
whom shall be appointed by Hoechst and one of whom shall be appointed by
Dade. The fees and expenses of the Arbitral Body and the arbitrators shall
be shared equally by the parties and advanced by them from time to time as
required; provided that at the conclusion of the arbitration, the
arbitrators shall award costs and expenses (including the costs of the
arbitration previously advanced and the reasonable fees and expenses of
attorneys, accountants and other experts) and interest (at the rate of
eight per cent (8%) per annum) in accordance with Article 8.3 below. No
pre-arbitration discovery shall be permitted, except that the arbitrators
shall have the power in their sole discretion, on application by either
party, to order pre-arbitration examination of the witnesses and documents
that the other party intends to introduce in its case-in-chief at the
arbitration hearing. The arbitrators shall render their award within ninety
(90) days of the conclusion of the arbitration hearing. The arbitrators
shall not be empowered to award either party any punitive damages in
connection with any dispute between them arising out of or relating in any
way to this Agreement or the transactions arising hereunder, and each party
hereby irrevocably waives any right to recover such damages.
Notwithstanding anything to the contrary provided in this Article 8 and
without prejudice to the above procedures, either party may apply to any
court of competent jurisdiction for temporary injunctive or other
provisional judicial relief if such action is necessary to avoid
irreparable damage or to preserve the status quo until such time as the
arbitration panel is convened and available to hear such party's request
for temporary relief. The
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award rendered by the arbitrators shall be final and not subject to
judicial review and judgment thereon may be entered in any court of
competent jurisdiction.
8.3 The costs of the arbitration, including the cost of the respective
attorneys, witnesses and experts in connection with such arbitration shall
be borne by the parties in accordance with Sections 91 et seq. German Civil
Procedure Act (ZPO) as directed by the arbitrators.
Article 9
Miscellaneous
9.1 This Agreement shall replace all existing agreements, understandings or
other arrangements between the Acquired Entities on the one side and
Hoechst and the Service Entities on the other side relating to the subject
matter of this Agreement, but it shall not affect any existing agreements
with third parties. In addition, any agreements by and among the Acquired
Entities are neither affected hereby.
9.2 All notices, reports, and consents required or permitted to be given under
this Agreement shall be in writing and deemed given when hand delivered or
delivered by documented overnight delivery service, or sent by telecopy,
telefax, or other electronic transmission service, provided a confirmation
copy is also sent no later than the next business day by first class mail,
return receipt requested, to the party to whom the same is directed at its
address whereby Hoechst shall receive a copy of all notices to the Service
Entities to the address as set forth below and Dade shall receive a copy of
all notices to the Acquired Entities to the address as also set forth
below, or with respect to both, to such other address as such party shall
designate by notice under this Article 9.2:
Notices to Hoechst:
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Hoechst Aktiengesellschaft
Bruningstrasse 50
65926 Frankfurt a. M.
GERMANY
Attention: Contract Controlling
Facsimile No.: (+49-69) 305-16 404
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Notices to Dade:
----------------
Dade International Inc.
1717 Deerfield Road
P.O. Box 778
Deerfield, Illinois 60015
U.S.A.
Attention: General Counsel
Facsimile No.: (+1-847) 267-5376
with a copy (which shall not constitute notice hereunder) to:
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Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
U.S.A.
Attention: Steven G. Pagliuca
John Connaughton
Facsimile No.: (++1-617) 572-3274
and:
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Kirkland & Ellis
199 Bishopsgate
London EC2M 3TY
ENGLAND
Attention: Karl S. Okamoto
David Patrick Eich
Facsimile No.: (+44-171) 814-6623
9.3 This Agreement may not be assigned by either party without the consent of
the other and any assignment without such consent shall be void, provided
that
(a) the Service Entities may assign this Agreement (including their
obligations hereunder) to (i) any of their subsidiaries, affiliates or
by means of their merger with or into any other company whether or not
they will be the surviving company or (ii) any entity with which they
establish a joint venture or similar business relationship; and
(b) the Acquired Entities may assign this Agreement under the same
circumstances as Hoechst or the Service Entities (cf. lit. (a) above),
provided that any such assignment does not materially alter the scope
or the nature of the Transition Services. It is understood that the
Acquired Entities are entitled to pass through to third parties which
assume or operate assets of the Acquired Entities the right to receive
Transitional
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Services. Furthermore, the Acquired Entities may assign their rights
pursuant to this Agreement (including their rights to indemnification)
to any of their or their affiliates' lenders as collateral security.
9.4 The construction, performance, and completion of this Agreement shall be
governed by the substantive law (and not the law of conflicts) of Germany.
Place of venue shall be Frankfurt a.M.
9.5 Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law. The
determination by any court of competent jurisdiction that one or more of
the sections or provisions of this Agreement are unenforceable shall not
invalidate this Agreement, and the decision of such court shall be given
effect so as to (i) limit, to the extent possible, the sections or
provisions of this Agreement which are deemed unenforceable and (ii)
replace any such sections or provisions with a section or provision which
accomplishes, to the extent possible, the original business purpose of such
provision in an enforceable manner. To the extent such determination has a
material impact upon the economic expectations of the parties hereto, the
parties agree to make appropriate modifications to this Agreement to take
such impact into account.
9.6 Except as required by law or compelled by legal process, neither party
shall, without the prior written consent of the other, disclose any of the
material terms or conditions contained herein.
9.7 Any amendment of or supplement to this Agreement, including this provision
and the Annexes, must be in writing to be valid and must be at least signed
by Hoechst and Dade.
9.8 Attached hereto as Annex 1.1 is a description of the Transitional Services
and related terms and conditions. Dade and Hoechst acknowledge and agree
that Annex 1.1 may not reflect the understanding of the parties hereto and
may, in particular, not be consistent with the representations and
warranties made by Hoechst pursuant to Articles 1.1. 1.6, 1.8, 1.9 and 4.1
herein. Dade and Hoechst agree that to the extent that Annex 1.1 is
inconsistent with the terms of this Agreement, the terms of this Agreement
shall govern. Dade and Hoechst shall amend Annex 1.1 such that the terms
and conditions set forth therein shall be consistent with the terms and
conditions set forth in this Agreement. Dade and Hoechst acknowledge and
agree that nothing in Annex 1.1 shall modify, amend or otherwise effect the
representations and warranties of Hoechst and the Service Entities set
forth in this Agreement or the rights or remedies of Dade or any Acquired
Entity hereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
HOECHST AKTIENGESELLSCHAFT
also acting on behalf of the companies
listed in Annex A
By: /s/ By:
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Name: -------------------------- Name:--------------------------
Title:-------------------------- Title:-------------------------
DIAGNOSTICS HOLDING, INC.
also acting on behalf of the companies
listed in Annex B
By: /s/
-----------------------------
Name-----------------------------
Title:---------------------------
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